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Members of Congress Have Little Right to Bear Arms on Capitol Hill

By on January 15, 2021 Categories: , ,

After last week’s riot at the Capitol, the acting House Sergeant-at-Arms implemented a new policy requiring House members to be screened for weapons before entering the House chamber.  On Tuesday, June 12, the U.S. Capitol Police declined to admit Rep. Lauren Boebert (R.-Colo.) to the floor of the House of Representatives after she refused to allow Capitol Police to inspect a bag she was carrying. Rep. Boebert protested on Twitter that she is “legally permitted to carry my firearm in Washington, D.C.[,] and within the Capitol complex.”  Rep. Madison Cawthorn (R.-NC) also claimed that he was armed during the riot.

These two freshmen are not the only Members of Congress who have firearms on Capitol Hill.  Earlier this year, Rep. Ken Buck (R.-Colo.) made news when he showed off an AR-15 rifle that he keeps in his office, telling “Joe Biden and Beto O’Rourke, if you want to take everyone’s AR-15s, why don’t you swing by my office in Washington, D.C. and start with this one?”

Joe Biden is unlikely to confiscate Rep. Buck’s AR-15; but the U.S. Attorney for the District of Columbia might.  At least two sets of laws govern the possession of weapons within the Capitol complex.  In 1967, Congress specifically prohibited the carrying of accessible weapons in all capitol buildings and grounds.  In addition to this federal law, the general criminal law of the District of Columbia applies to the Capitol complex.  The District has strict rules on firearms.  Among these, all firearms must be registered, some firearms cannot be lawfully registered  (e.g., certain semiautomatic firearms deemed “assault weapons”), ammunition magazines cannot exceed a 10-round capacity, the carrying of rifles and shotguns is prohibited, and the carrying of pistols is lawful only with a license to carry issued by the District of Columbia.  (As the signs at the Capitol office buildings warn visitors, the District does not recognize carry permits from other states.)  Even with a license, the District prohibits the carrying of pistols in many places, including the “U.S. Capitol buildings and grounds” and within 1,000 feet of a demonstration.

The 1967 federal law contained an exception for those “authorized by regulations which shall be promulgated by the Capitol Police Board.”  The Capitol Police Board regulations (Appendix J), in turn, provide that, “nothing contained in [the 1967 federal law] shall prohibit any Member of Congress from maintaining firearms within the confines of his office or any Member of Congress or any employee or agent of any Member of Congress from transporting within the Capitol Grounds firearms unloaded and securely wrapped.”  When Rep. Buck faced questions about the legality of his rifle, the Capitol Police pointed to this regulation to explain why his possession of the rifle was lawful.

But Capitol Police Board regulations do not authorize him—or any other Member of Congress—to possess firearms in violation of District law.  The Capitol Police Board regulations merely exempt certain people from the 1967 federal law.  On their face, they do not purport to confer a general authority to possess firearms in violation of District law.  Nor does the Capitol Police Board have the power to grant such an authority.  The 1967 federal law had a savings clause providing that “[n]one of the general laws of the United States and none of the laws of the District of Columbia shall be superseded by any provision of this Act.”  So while the Capitol Police Board regulations provide Members of Congress with a limited exception from the 1967 federal law governing weapons on Capitol grounds, they do not preempt the District’s general gun laws—which apply at the Capitol as they do elsewhere in the District.

Possession of an AR-15 rifle is unlawful in the District.  The District of Columbia’s statutory definition of “assault weapons” includes any semiautomatic rifle with a detachable magazine and a pistol grip.  These weapons cannot be registered in the District, and a person possessing such a firearm is subject to a misdemeanor prosecution for possession of an unregistered firearm.  Rep. Buck’s AR-15 has a pistol grip and a detachable magazine, so it fits within this definition.  Rep. Buck’s rifle also appeared to have a thirty-round magazine attached.  If so, Rep. Buck could be prosecuted for that, too.  The District of Columbia prohibits ammunition magazines that can accept more than 10 rounds, and in 2019, the District elevated the penalty for this crime from a misdemeanor to a felony.

Rep. Buck is correct that his possession of a rifle within his office is consistent with Capitol Police Board regulations.  So he could not be charged under the 1967 federal law with unlawfully possessing a firearm on Capitol Grounds.  But because the federal law did not supersede the District’s weapons laws, he still could be prosecuted for violating the District’s gun control laws.

Rep. Buck has also claimed that his rifle is “non-functional” because it “is lacking its bolt carrier group” (which contains the firing pin among other components) and has been equipped with a trigger lock.  But the District’s definition of firearm includes “any weapon, regardless of operability, which . . . [can be] readily converted, restored, or repaired, or is intended to, expel a projectile . . . by the action of an explosive” and includes “the frame or receiver of any such device.”  The removal of the bolt carrier group and the existence of the trigger lock will not remove his AR-15 from the District’s regulation of firearms.

What about Rep. Boebert and Cawthorn’s desire to carry pistols throughout the Capitol?  The Capitol Police Board regulations only permit Members of Congress to keep firearms in their offices and to transport unloaded and securely wrapped firearms elsewhere.  They do not permit the carrying of a loaded pistol outside a Member’s office.  The regulations further prohibit all persons (including those otherwise authorized to carry guns at the Capitol) from carrying any firearms inside the House or Senate chamber and some other adjacent spaces, “unless assigned or approved by the two Sergeants of Arms for maintenance of adequate security.”  So Members have no right to be on the floor with firearms, loaded or otherwise.  Members who violate the Capitol Police Board regulations could face federal prosecution under the 1967 federal law.

Even within a Member’s own office, District law imposes further restrictions.  Members’ weapons would have to be registered in the District of Columbia, and they could not have any high-capacity magazines.  Their ability to carry a pistol within their office is still questionable.  District law prohibits individuals with licenses from carrying concealed pistols in certain areas, including the Capitol buildings and grounds.  So Members could not rely on having a DC concealed carry permit to carry their weapons anywhere in the Capitol, including their offices.  Without a license, District law permits a person to carry a registered firearm in his “place of business.”  I’m not sure if the Members’ offices will count as their personal places of business.  If it is, then (and only then) could they carry loaded pistols in their offices.  But here again, Members have no authority to bear arms outside their offices.  Those who do could face prosecution under District law, either for carrying a pistol without a license or, if they were licensed, for carrying a firearm in a prohibited place.  Outside of their offices, Members may only transport firearms within the Capitol complex if they remain outside the House and Senate chambers (and surrounding areas), and if the firearms are unloaded and in a locked container (which would comply with both Capitol Police Board regulations, which require firearms to be unloaded and securely wrapped, and District law, which requires that the transporting container be locked).

If that were not enough, there is one further federal law complication.  A 1988 federal law (18 U.S.C. § 930) makes it a misdemeanor to possess a firearm in a federal facility, which is defined as “a building or part thereof owned or leased by the Federal Government, where Federal employees are regularly present for the purpose of performing their official duties.”  The Capitol buildings likely fit within this definition.  (I am not aware of any charges brought under § 930 for possessing firearms in a capitol building—people are usually charged under the 1967 law or the District’s gun laws because they contain higher penalties.)  Section 930 has an exception for “the lawful carrying of firearms or other dangerous weapons in a Federal facility incident to hunting or other lawful purposes.”  The scope of this section—especially as it applies to “other lawful purposes”—remains largely untested.  Federal courts would be unlikely to recognize, however, that it covers the carrying of loaded firearms for self-defense because such a broad exemption would largely negate the attempt in § 930(a) to generally prohibit weapons in federal buildings.  See United States v. De la Cruz-Bancroft, No. CR 09-MJ-319 JH/WDS, 2010 WL 8752034, at *2 (D.N.M. Jan. 4, 2010).  Nor is it clear how § 930’s general ban on firearms in federal facilities would interact with the specific 1967 law that Congress implemented for the Capitol.  A general rule of statutory construction is that specific laws prevail over general laws, so ordinarily one might think that the exception for Members of Congress in the 1967 law should prevail over the generic ban of firearms in federal facilities in § 930.  But the 1967 law states that it does not supersede any of the “general laws of the United States.”  The savings clause means that, even if Capitol Police Board regulations exempt Members under the 1967 law, it might not shield them from prosecution under § 930.

Finally, Members of Congress do not have any special right to break criminal law, ex officio.  While the Constitution affords Members of Congress a privilege from civil arrest “during their Attendance at the Session of their respective Houses,” that privilege does not apply to arrests for “Treason, Felony and Breach of the Peace”—a term of art that encompassed all crimes.  Nor could they rely on the Second Amendment’s right to bear arms.  Heller’s dicta, which lower courts have followed, state that governments may ban “the carrying of firearms in sensitive places such as schools and government buildings.”  The D.C. Circuit has already held that the Capitol complex is a quintessential sensitive place.

In the nineteenth century, it was not uncommon for Members of Congress to have pistols in their desks.  (Nor was it uncommon for other members to complain about their brethren who were armed with concealed weapons.)  In the twentieth century, John Dingell supposedly kept a hunting shotgun in a Capitol basement locker when he was a teenage congressional page.  But federal and District weapons law have become much stricter in recent decades.  Members of the general public routinely face felony prosecutions when they bring weapons to the Capitol complex.  Members of Congress are not above the laws they have enacted.  Except in very limited cases, they have no right to be armed on Capitol Hill.